P (A Child) (Abduction: Child's Objections)

Factual and Procedural Background

The mother appeals an order made by a Deputy High Court judge on 8 August 2024 dismissing her application for a summary return order under the 1980 Hague Child Abduction Convention. The mother sought the return of the parties' 15-year-old son ("C") to Romania. C had been living with the mother in Romania and came to England to visit the father for a holiday in December 2023 but did not return as scheduled in January 2024. The father initially denied wrongful retention but later accepted it. The parties agreed that C objected to returning to Romania and was of sufficient age and maturity for his views to be considered under Article 13 of the 1980 Convention. The judge exercised discretion not to order C's return, prompting the mother's appeal.

The parents met in Spain, where C was born in 2009. They separated shortly thereafter, with C living primarily with the mother. The father moved to country M and later to England in 2017. The mother and C moved to Romania in 2022, where C attended school and integrated well. Contact between father and C resumed with visits in 2022 and 2023. The father has a 2014 conviction for harassment/domestic violence against the mother, and in 2015, a Spanish court granted the mother sole parental responsibility, removing it from the father. The father was also found in contempt in 2018 for non-payment of maintenance.

In January 2024, the father claimed missed flights back to Romania due to train delays and decided to retain C in England. The mother raised welfare concerns related to the father's abusive history, influence on C, and C's lifestyle in London. C was assessed by a Cafcass Officer, who reported C's strong objection to returning, his immaturity, and influence from the father. The judge met with C, an unusual step in 1980 Convention cases.

The proceedings were initiated in England in June 2024 and culminated in a hearing in August 2024. The judge dismissed the mother's application for a return order, finding C's views to be the dominant factor.

Legal Issues Presented

1. Whether the judge erred in the exercise of his discretion by giving excessive weight to the child's objections to returning to Romania under the 1980 Hague Child Abduction Convention.
2. Whether the judge failed to properly consider the welfare factors, including the history of domestic abuse and the impact of the wrongful retention on the child's relationship with the mother and maternal family.
3. Whether the judge failed to give appropriate weight to the policy considerations underpinning the 1980 Convention, including the swift return of wrongfully retained children and deterrence of abduction.
4. Whether the judge misused the meeting with the child in assessing the child's nationality and views.
5. Whether this court should make a summary return order or remit the matter for rehearing.

Arguments of the Parties

Appellant's Arguments

• The judge failed to give sufficient weight to the core principle of the 1980 Hague Convention requiring the swift return of wrongfully retained children.
• The judge placed excessive weight on the child's objections and overstated their strength and coherence.
• The judge did not properly consider the mother's exclusive parental responsibility as determined by a Spanish court.
• The judge failed to analyze the impact of the father's history of domestic abuse on the child's welfare.
• The judge disregarded photographs evidencing potential risks to the child in London and failed to analyze these welfare concerns.
• The judge did not properly consider the detrimental impact on the child's relationship with the mother and maternal family.
• The judge erroneously relied on information from a meeting with the child when assessing nationality and views.
• The judge failed to undertake the required balancing exercise of all relevant factors, effectively treating the child's views as determinative.
• The wrongful retention was planned and supported by false representations, such as the application for settled status and the train breakdown story.
• A rehearing is unnecessary as this court is well placed to determine the application and should order the child's return.

Respondent's Arguments

• The court should not interfere with the judge's discretionary decision absent a clear error.
• The judge applied the correct legal principles and considered all relevant factors, including welfare and policy considerations.
• The child's views are genuinely his own, he is articulate and mature for his age, and strongly objects to returning to Romania.
• The child is settled and happy in England, and a return order would likely damage his relationship with the mother.
• The mother's appeal is essentially a re-run of arguments already considered and rejected by the judge.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144	Policy considerations underpinning the 1980 Convention, including deterrence of abduction and swift return.	Referenced to emphasize the importance of deterring unilateral parental actions and the aims of the Convention.
In re M (Children) [2016] Fam 1	The breadth of discretion when a child objects to return; child's views are not determinative; welfare and Convention considerations must be balanced.	Used to clarify that the judge must balance child's views with welfare and policy factors; the judge's analysis was flawed for treating views as the "magnetic factor".
In re W and another (Children) [2019] Fam 125	Reinforces policy aims of the 1980 Convention including protection from harmful effects of wrongful removal or retention.	Supported the court's emphasis on the Convention's policy considerations beyond speedy return.
In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619	Importance of listening to children's views but distinguishing taking account of views from giving effect to them.	Quoted to highlight that the child's views are important but not determinative.
In re M and another (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288	The discretion under the 1980 Convention is "at large" and must consider Convention policies alongside child's welfare and views.	Guided the court's analysis of the wide range of factors to be balanced in discretion.
In re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80	Limits on appellate interference with trial judge's discretion.	Referenced in submissions on the standard of review for the appeal.
In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76	Standard for appellate interference with discretionary decisions in child abduction cases.	Referenced in submissions on the appeal standard.
Cannon v Cannon [2005] 1 WLR 32	Exercise of discretion under the Hague Convention requires due regard to Convention objectives and child's welfare.	Discussed in relation to the balance between Convention objectives and child's welfare.
In re C (A Child) (Child: Ability to Instruct Solicitor); Practice Note [2023] 1 WLR 4065	Guidelines on judicial meetings with children and their evidential significance.	Used to caution against overreliance on the judge's meeting with the child in summary Convention proceedings.

Court's Reasoning and Analysis

The court found that the judge erred in his exercise of discretion by giving disproportionate weight to the child's objections, describing them as the "magnetic factor" without properly balancing them against other relevant considerations. The judge failed to adequately analyze the child's views for coherence and accuracy, overlooking evidence that the child misrepresented his life in Romania and was influenced by the father. The child's maturity was assessed as below that expected for his age, further diminishing the weight of his views.

The judge's acceptance of the father's assertion that the child could return to Romania "whenever he wishes" was found to improperly discount the father's influence over the child. The judge's use of the meeting with the child to conclude that the child "considers himself to be Spanish" was deemed inappropriate and inconsistent with other evidence.

The judge also erred in his treatment of welfare considerations, improperly discounting the significance of the father's history of domestic abuse, the removal of his parental responsibility by a Spanish court, and the adverse impact of wrongful retention on the child's relationship with the mother and maternal family. The judge failed to give sufficient weight to concerns raised by photographs depicting the child's troubling lifestyle in London.

Regarding the 1980 Convention's policy objectives, the judge limited his analysis to the speedy return principle, neglecting broader aims such as deterring wrongful retention and respecting the habitual residence state's judicial processes. The father's wrongful retention was found to be classic and planned, including a false application for settled status and influencing the child to remain in England without court approval.

The appellate court, exercising the discretion afresh, concluded that the balance of welfare factors and Convention policy considerations strongly favored making a summary return order. The child's objections, while significant due to his age, were outweighed by the factors supporting return.

Holding and Implications

The mother's appeal is allowed and a summary return order under the 1980 Hague Child Abduction Convention is made.

The court's decision overturns the judge's refusal to order the child's return to Romania. This ruling emphasizes the necessity of a proper balancing exercise in child abduction cases, where the child's views are important but not determinative. The ruling reinforces the Convention's policy aims, including deterring wrongful retention and respecting the child's habitual residence. No new precedent was established beyond the application of established principles to the facts of this case. The direct effect is that the child must be returned to Romania promptly for further welfare determinations to be made there.